August 19, 2009

Dershowitz says Davis opinion shows "Scalia's Catholic Betrayal"

The title of this post notes the headline of this new piece at the Daily Beast from the pen of Alan Dershowitz. Though I find it a bit odd that a famous Jewish law professor would be lecturing a famous Catholic Associate Justice about Catholicism, I am not too surprised that Dershowitz could not resist going after Justice Scalia for his work in the recent Davis decision. Here are snippets from the provocative piece:

I never thought I would live to see the day when a justice of the Supreme Court would publish the following words:

“This court has neverheld that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”

Yet these words appeared in a dissenting opinion issued by Justices Antonin Scalia and Clarence Thomas on Monday....

It would be shocking enough for any justice of the Supreme Court to issue such a truly outrageous opinion, but it is particularly indefensible for Justices Scalia and Thomas, both of whom claim to be practicing Catholics, bound by the teaching of their church, to do moral justice. Justice Scalia has famously written, in the May 2002 issue of the conservative journal First Things, that if the Constitution compelled him to do something that was absolutely prohibited by mandatory Catholic rules, he would have no choice but to resign from the Supreme Court....

Surely it is among the worst sins, under Catholic teaching, to kill an innocent human being intentionally. Yet that is precisely what Scalia would authorize under his skewed view of the United States Constitution....

[W]hatever the view of the church is on executing the guilty, surely it is among the worst sins, under Catholic teaching, to kill an innocent human being intentionally. Yet that is precisely what Scalia would authorize under his skewed view of the United States Constitution. How could he possibly consider that not immoral under Catholic teachings? If it is immoral to kill an innocent fetus, how could it not be immoral to execute an innocent person?

Ordinarily I would not include a justice's religious views in a criticism of a judicial opinion, but with regard to capital punishment, it is Justice Scalia who has introduced the religious dimension. I am simply trying to hold him to his own published standards.

I am not a Catholic, yet I teach principles of Catholic morality in my Harvard Law Schoolfreshman seminar, “Where Does Your Morality Come From?” I hereby challenge Justice Scalia to a debate on whether Catholic doctrine permits the execution of a factually innocent person who has been tried, without constitutional flaw, but whose innocence is clearly established by new and indisputable evidence.... Although I am neither a rabbi nor a priest, I am confident that I am right and he is wrong under Catholic Doctrine. Perhaps it takes chutzpah to challenge a practicing Catholic on the teachings of his own faith, but that is a quality we share.

I invite him to participate in the debate at Harvard Law School, at Georgetown Law School, or anywhere else of his choosing. The stakes are high, because if he loses — if it is clear that his constitutional views permitting the execution of factually innocent defendants are inconsistent with the teachings of the Catholic Church — then, pursuant to his own published writings, he would have no choice but to conform his constitutional views to the teachings of the Catholic Church or to resign from the Supreme Court.

Also riffing on Justice Scalia's work in Davis in the Daily Beast is LawProf Paul Campos, whose piece here is titled "Scalia's Death Row Lunacy."

Comments

Regardless of what someone thinks of prior SCOTUS rulings on the matter, didn't Scalia at least state the truth? If someone is going to fault Scalia it would be for agreeing with that outcome, not with the statement about the court's rulings.

I would also say that there is something to the idea that once judicial due process has run that any remaining mistakes are for the executive to repair.

Posted by: Soronel Haetir | Aug 19, 2009 4:37:04 PM

Dershowitz may be a self-regarding clown, but good for him for exposing Scalia's twin pieties- Catholicism and textualism - for what they are: bludgeons and boasts.

Posted by: dm | Aug 19, 2009 4:58:54 PM

Dershowitz does a good job of putting words into Scalia's mouth that Scalia never said. That's about the only competency he shows in his post.

There is nothing in Scalis's dissent that would authorize the intentional killing of an innocent human being. That pure horseshit.

So the premise of his thesis and his pseudo challenge is malarkey.

Posted by: Daniel | Aug 19, 2009 5:23:54 PM

Prof. Dershowitz makes an unintended point. It is not just Catholicism, but the Constitution that does not countenance the execution of an innocent person. Why have freedom if the government may execute innocent people without recourse? The rage people feel against the lawyer comes from inaccuracy. The lawyer allows teh guilty to go free, and locks up innocent people at totally unacceptable, scandalous rates. That government lawyer hierarchy must go for fundamental reasons, going way beyond Fifth Amendment procedural due process. They are extreme incompetents totally mired in 13th Century methods, none of which work today. There is no redemption for them. Their failure is so extreme, they have to go.

It seems that lawyer procedures and rent seeking trump not only Scalia's secular values, but also the teaching of his church, with his being religious. The criminal cult enterprise value likely trumps the value of his family, and his very life. The criminal has had enough lawyer income generating procedures, we don't care if their result is accurate.

Dershowitz is comes so close to seeing the self-evident, from Western Civ 101, but fails to do it. There is a term of art for coming that close.

There is nothing in Scalis's dissent that would authorize the intentional killing of an innocent human being. That pure horseshit.

You must have read a different dissent than the rest of the world did.

Posted by: JC | Aug 19, 2009 7:58:12 PM

I would also say that there is something to the idea that once judicial due process has run that any remaining mistakes are for the executive to repair.

Executive clemency is a purely discretionary remedy. A prisoner who establishes his or her actual innocence is entitled to relief as a matter of right under the Federal Constitution.

Posted by: JC | Aug 19, 2009 8:00:43 PM

Soronel Haetir wrote: "Regardless of what someone thinks of prior SCOTUS rulings on the matter, didn't Scalia at least state the truth? If someone is going to fault Scalia it would be for agreeing with that outcome, not with the statement about the court's rulings."

You are both correct and incorrect, essentially nit-picky. While Scalia was technically accurate in terms of characterizing the post-Reagan Court's decisions, what you are reading is complaining about "agreeing with that outcome." (Remember, it is the Justices themselves who "say what the law is," i.e., who determine what the constitution means). Scalia believes the constitution allows for the government to execute people who, after trial, can prove their innocence, i.e., allows for the government to knowingly commit murder so long as it provided a fair trial first. This is worthy of the most absolute condemnation. In fact, it's worthy of impeachment. More than that, impeachment is a moral imperative.

Soronel Haetir wrote: "I would also say that there is something to the idea that once judicial due process has run that any remaining mistakes are for the executive to repair."

Either the Constitution prohibits the government from knowingly committing murder or it doesn't. If it does prohibit it, then it most certainly is not the case that "any remaining mistakes are for the executive to repair," unless you are advocating overturning Marbury v. Madison.

Posted by: DK | Aug 19, 2009 9:52:15 PM

JC. How can there be anything in his dissent that authorizes the innocent killing of a human being. It's a dissent. By definition it can't authorize anything.

Posted by: Daniel | Aug 19, 2009 10:32:55 PM

My quibble here is with the entire idea of proving innocence. Once the burden of "beyond reasonable doubt" has been met in a trial free from constitutional error, the burden then shifts and becomes almost insurmountable. I believe this roadblock is correct both ethically and legally. So the entire point is who must be convinced that something has gone wrong?

If the executive won't act because the executive is unconvinced I have no problem with that outcome. If the executive won't act due to political considerations then there are more serious issues, but are much harder to remedy.

I believe this falls under the category of situations spelled out in the Declaration of Independence, being an evil that will be suffered so long as it can be suffered. If it becomes a large enough issue then eventually some new system for safeguarding lives will be created. I do not see that process as being within the judiciary's province however.

So again, do you really believe it should be within a court's power to revisit facts decided by a jury in these cases? That would be an extremely dangerous precedentt. We already have executives that can second guess a jury, or even ignore a jury finding for almost any reason.

Posted by: Soronel Haetir | Aug 19, 2009 10:48:15 PM

JC. How can there be anything in his dissent that authorizes the innocent killing of a human being. It's a dissent. By definition it can't authorize anything.

Is that how you intended your original post to be read? With respect, I think anyone reading your original post would think you were referring to what Scalia's dissent would mandate if it were the controlling opinion in the case.

Posted by: JC | Aug 19, 2009 11:16:41 PM

So again, do you really believe it should be within a court's power to revisit facts decided by a jury in these cases?

Of course, where new, post-verdict facts cast doubt upon the reliability of the original jury verdict.

Posted by: JC | Aug 19, 2009 11:21:08 PM

It's a lot of fun to huff and puff about this, but of course in the real world the point is, how are you going to know that someone is innocent? In a case like that posited by Dershowitz (victim turns up alive), there's a 0% possibility that someone would be executed; there would be executive clemency. In an increasing number of other cases, DNA testing statutes may provide relief.

Beyond that, though, there's really just know way to know, and what proponents of a broad "actual innocence" doctrine want are essentially repeated trials until they get a result they like. Why is a "recantation" (with no obvious reason for lying in the first place, such as actual coercion) 20 years after a trial supposed to be more reliable than what someone said only a few months after the murders? In all but the most clear cut cases, it will be possible for well-funded habeas lawyers to cast some kind of doubt on the original case, especially as memories fade, evidence was not retained, witness die, etc, years after the original proceedings were complete. The point is, there is only some maximum level of accuracy of which any human institution is capable, and we've decided a fair trial, with extensive post-conviction review to ensure it was fair, reflects that in our legal system.

If you think that fact makes the death penalty inherently problematic/in need of abolition, that's a perfectly respectable position, but you should make a straightforward argument on that basis, and cut the P.R.-talking point b.s. about Scalia thirsting to executing people he literally knows are innocent.

Posted by: Jay | Aug 19, 2009 11:27:24 PM

JC,

And what standard do you propose to have govern such review? Personally I am quite happy with leaving such to executive review based solely upon the standard decided upon by such executive. Government is not and will never be a perfect tool. As an example of mercy for political considerations, look at the sentences that are routinely commuted in the middle east under international pressure. I believe that to be a terrible mistake, one I don't wish to see repeated here.

There are a large number of celebrity prisoners who have managed to convince credulous members of the public that they are innocent, yet when their claims have been put to review collapse. Is convincing a reporter hoping to break a story the standard you would like to see employed? This is where I believe Scalia's careful reference to convincing a habeas court comes into play. It simply isn't the correct forum for such decisions.

Posted by: Soronel Haetir | Aug 19, 2009 11:39:00 PM

I also agree entirely with Jay.

Posted by: Soronel Haetir | Aug 19, 2009 11:41:15 PM

In a case like that posited by Dershowitz (victim turns up alive), there's a 0% possibility that someone would be executed; there would be executive clemency. In an increasing number of other cases, DNA testing statutes may provide relief.

The question presented is not whether a hypothetical executive might grant discretionary relief, or whether a hypothetical statute might provide an avenue for relief. The question is whether the Federal Constitution mandates that a remedy be made available to one who has been wrongfully convicted. It obviously does, and no competent jurist could seriously harbor a good faith belief to the contrary. The line of reasoning that Justice Scalia and Justice Thomas have advocated in opposition to freestanding claims of actual innocence is not merely unreasonable, it is laughable. It it a position that warrants no respect whatsoever, and it is a position that history will rightfully condemn.

JC-
I say it unquestionably doesn't, and no good faith jurist could believe otherwise from me! My, what a fun mode of argumentation this is.

Posted by: Jay | Aug 20, 2009 1:57:32 AM

JC--
I should also add, I have no trouble with a state court (such as the TCCA) deciding that it will grant relief under such circumstances as a matter of its general oversight of its own state's judiciary/criminal procedure. I think there is a good argument to be made for such a common law power in state courts to "do justice," even absent explicit statutory/state constitutional authorization. I just have more trouble seeing it on federal habeas.

Posted by: Jay | Aug 20, 2009 2:03:36 AM

I think there is a good argument to be made for such a common law power in state courts to "do justice," even absent explicit statutory/state constitutional authorization. I just have more trouble seeing it on federal habeas.

And if the state courts refuse to grant relief, notwithstanding unambiguous, irrefutable, absolute, concrete, slam-fucking-dunk proof of actual innocence? You are honestly going to sit there and claim that it does not shock the conscience, that it is not fundamentally unfair, for one of the Several States to put a prisoner to death or keep a prisoner incarcerated in such circumstances? And not only that, but you are going to have the outright audacity to claim that the federal judiciary cannot even intervene to provide relief to the prisoner where the state courts have unquestionably failed in their obligation to uphold the requirements of the Federal Constitution? I think you would be happier living in a police state. There are several countries I can suggest. The United States is not one of them.

Posted by: JC | Aug 20, 2009 2:25:58 AM

Whatever, JC. You've done nothing to contest my point that the hypothetical you propose simply has no chance of occurring in the real world. It's just a bludgeon for your political point. What if I conceded that, yes, in such a case (where someone produces the supposed murder victim), there's a federal constitutional SDP right? Would you actually stop there? Of course not. You'd be right back here telling us how anyone who can produce a couple of witness who've changed their stories, evidence that a detective who died in 1993 was secretly a racist, or shows that the state didn't hold on to a bloody t-shirt for 25 years was entitled to a new trial as well. If a defendant couldn't produce all that yet, he'd still be entitled to a hundred grand or so for a government-funded habeas investigation to make sure no one had changed their mind since his trial.

BTW, the DNA acts I referred to earlier aren't "hypothetical," they actually exist at the federal level and in a large majority of states. They're certainly far less hypothetical than your and Dershowitz's crime-novel scenarios.

Posted by: Jay | Aug 20, 2009 3:22:52 AM

So do you concede or not? Under the Federal Constitution, is a prisoner who establishes that he or she is actually innocent of the offense of conviction entitled to relief? It's a straightforward question. Go on, let's here it. Do you think that, as long as someone got a fair trial, it is perfectly constitutional for the government to deliberately put an innocent person to death? Scalia said it was in the Davis case, just like he did in Herrera. Thomas concurred in the Davis case, just like he did in Herrera. You either buy that line of totalitarian bullshit or you don't. If you believe it, I dare you to defend it. Good luck.

Posted by: JC | Aug 20, 2009 4:09:55 AM

To defend something, it's generally necessary that the other side first offer some kind of affirmative argument. Since yours consists entirely of insults, cursing, and an apparent belief that your views require no justification beyond virtual yelling, I'm not very inclined to.

At a more basic level, you keep saying "under the Federal Constitution," where I can't help but feel what you really mean is "under my view of right and wrong" or "if there's any justice in the world." Conspicuously, you don't cite any particular part of it to support your view of what it must mean. Maybe the Constitution's not a perfect match with what's right, JC. I'm just more willing to admit it than you are.

Posted by: Jay | Aug 20, 2009 7:23:58 AM

JC,

I don't see that question as being nearly as relevant as the mode one gets to that point. The actual cases that come before the courts are for the most part far more ambiguous. Also remember you are only entitled to due process, not perfect process.

One definition of sovereign I've seen is based on the power to kill. Certainly the US government has the power to send innocent men to their death, without so much as a trial via the draft and war powers. There isn't even as far as I know a legal duty to take care of the wounded afterward, though such an ethical duty does exist. Even the conscientious objector exemption is one of practicality rather than mandate. If it did not exist, there would be no bar to executing such an objector for cowardice or dereliction of duty or other similar charges for refusing to fight

I realize that war is an entirely different context, yet it puts the lie to there being no power to kill innocents.

The Constitution is not a guard against all ills. The rare execution of the factually innocent who despite all the process still slip through the cracks may well be one of them.

Posted by: Soronel Haetir | Aug 20, 2009 7:31:58 AM

123D. Solves the problem of false convictions. Even if the third conviction is false, the condemned is still a violent bad guy. And each of the prior convictions stands for a hundred other crimes committed but not solved, due to lawyer obstructionism of the police. And D prevents 100's of future violent crimes by the deceased, by attrition, assuming zero deterrence. If there are sufficient executions along a dose response curve, with the rigid guideline of the 123 count, and no escape, there may be some deterrence. The number of violent crimes prevented may be in the thousands, not in the hundreds.

If the Innocence Project taught us anything, it is that wrongful convictions are almost always the consequences of shoddy and illegal due process, which is a constitutional violation that results in cruel and unusual punishment. * Scalia seems to argue that because it is not unusual, it is not cruel AND unusual. But an understanding of some of the cases and why they occur disavows that "originalist" thinking, as if our Founders had as much blind faith in the government.

At the heart of Justice Scalia's comment is the great flaw of strict constructionism: namely that if the US Constitution does not specifically state that "no state shall torture 90 year old protestant women", therefore it must be permissable to do so. It is the height of judical ignorance, let alone immorality, to expect a 240 year old document, however majestic, to anticapate every nuance of logical, just and moral public policy two and a half centuries into the future. Perhaps if one of Scalia's family had been picked up in Texas and tried for an unsolved twenty year old murder, his cavalier attitude toward executing innocent people would abruptly change.

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